HARI MOHAN MODAK Vs. RAMESWAR DAS

JUDGEMENT

(1.) This appeal arises out of a suit in ejectment. The First Court gave the plaintiff a modified decree. On appeal it was held that the plaintiff cannot eject but can only get extra rent on the land on which the defendant is found to have encroached. Against this decision the defendant No. 1 has appealed.

(2.) The first point taken is that the plaintiff was not entitled to maintain the suit as he was not legally appointed a shebdit. It is found, however, that he is the de facto manager of the property and has been recognised as such by the parties concerned, and that is sufficient to enable him to bring a suit in ejectment to protest the idol s property against trespass.

(3.) The next point taken is that is deciding the suit the lower Appellate Court was Wrong in looking to the area of the land leased instead of the boundaries, and our attention is drawn to the decision of their Lordships of the Judicial Committee in the case of Durga Prasad Singh v. Rajendra Narayan Bagchi 21 Ind. Cas. 750 : 11 C. 493 : 18 C.W.N. 66 : (1914). M.W.N. l : 15 M.L.T. 68 : 19 C.L.J. 95 : 40 I.A. 223 : 26 M.L.J. 25 : 16 Bom. L.R. 42 (P.C.). That decision in no way contradicts the well-established rule that in a case of this sort where the boundaries can be ascertained, effect must be given to the description by boundaries irrespective of area; but if the boundaries are uncertain, then area must also be considered. In this case there is a clear finding that the eastern boundary is uncertain and that there has been an encroachment on the plaintiffs khas land on the eastern side. It is also found that in settling the terms of this land the area of 3 cottas was given by guess,